Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
MEMORANDUM OF DECISION
Susan Quinn Cobb, J.
The petitioner, Alberto Ampero, brings this petition for a writ of habeas corpus claiming that his trial counsel was ineffective, he is actually innocent and that his due process rights were violated. He seeks an order of this court vacating his convictions and releasing him from the respondent's custody. Having considered the evidence and arguments of the parties, the court grants the petition as to the petitioner's claim for presentence credit, pursuant to the stipulation of the parties, and denies the petition as to the remainder of the petitioner's claims.
On or about August 28, 2009, the petitioner was arrested and charged with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(a), kidnapping in the second degree in violation of General Statutes § 53a-94(a), strangulation in the second degree in violation of General Statutes § 53a-64bb and interfering with an officer in violation of General Statutes § 53a-167a.
After a jury trial, the petitioner was convicted of kidnapping in the second degree and interfering with an officer. He was found not guilty of the remaining charges. The trial court sentenced him to a total effective sentence of twenty years' incarceration, suspended after ten years' incarceration, followed by five years' probation. The petitioner appealed his convictions to the Appellate Court. See State v. Ampero, 144 Conn.App. 706, 72 A.3d 435, cert. denied, 310 Conn. 914, 76 A.3d 631 (2013).
On direct appeal from his convictions the petitioner claimed: " (1) that the admission of testimony regarding his prior bad acts constituted reversible error; (2) that the admission of testimony regarding his prior incarceration constituted reversible error; and (3) that prosecutorial impropriety in offering the foregoing evidence and arguing its significance to the jury deprived him of a fair trial." Id., 708. The Appellate Court rejected these claims. Id. As to the first two evidentiary claims, the Appellate Court found that they had not been preserved at trial and were therefore unreviewable on appeal. It also found that trial counsel, R. Bruce Lorenzen, intentionally chose not to object to the prior misconduct or incarceration evidence, but rather made the strategic decision to use the evidence as part of the petitioner's defense.
The Appellate Court found that the jury could reasonably have found the following facts:
On August 27, 2009, around 7 p.m., the victim, Jasmin Vazquez, was driving her three children, a six year old, a four year old, and a six month old, to her mother's house on Natick Street in Hartford, when she stopped at the store on the corner of Broad and Ward Streets in Hartford to buy them chips and juice. She had parked her car on Broad Street and was walking around the car to remove her children from it when she saw the defendant. The victim and the defendant previously had been in a relationship together that ended in April 2009, following an incident in which the defendant slapped the victim in the face and broke both of her cell phones in half.
The defendant initiated a conversation with the victim by saying that they needed to talk, to which the victim replied that they did not have to talk about anything. After the defendant repeated that they needed to talk, he showed the victim a kitchen knife in his back pocket and told her to get into her car. After the victim complied, the defendant also got into the car and told the victim to drive around the corner and park in front of an apartment building on Ward Street. Once she had parked her car around the corner, the defendant turned off the car's motor and told the victim and the two older children to get out of the car. The defendant also got out of the car and carried with him the victim's six month old son in his car seat. The defendant then directed the victim and the children into his apartment.
The defendant led the victim and her children upstairs to a room inside of the apartment that contained only a bed, told the two older children to go to sleep, and put the baby, who was still in his car seat, on the floor.
The defendant, who was then " real mad, " again told the victim that they had to talk. The victim repeatedly told the defendant that she wanted to go home, but the defendant told her she was not going anywhere. The defendant argued with the victim and would not let her leave the apartment or make any phone calls. At some point during the argument, the defendant pressed the same knife that he previously had displayed to the victim against her stomach and told her that he loved her and that if she was not going to be with him, she would not be with any man. The defendant also threatened that if the victim was not going to be with him, he would either kill her or kill himself and that she would have to live with the fact that he had killed himself for her love.
The defendant argued with the victim for the next several hours and at one point bit her neck, leaving hickeys to show that she belonged to him. The defendant held the victim overnight. The next day, the victim tried to escape by bringing her children downstairs, but the defendant would not let her leave. The defendant grabbed the victim by her right wrist, told her she was not going anywhere, took her phone, and ordered her to call her mother. The defendant instructed the victim to tell her mother that she was happy with the defendant, that she loved him and that they were going to be together. The victim complied, but the victim's mother did not believe her daughter because she was crying and she knew her daughter was afraid of the defendant. The victim's mother repeatedly asked her about her location, what the defendant was doing to her, and if the children were okay. The victim was able to respond only that the children were okay. The defendant then took the phone and spoke with the victim's mother directly, telling her that he knew she had called the police in April when he was arrested and that she had better not call the police this time. The victim's mother then handed the phone to her husband so that she could call the police. Fearing that the defendant would hear her calling the police, the victim's mother told the 911 operator that she had had a fight with her daughter that had caused her daughter to leave the house and that she was requesting a well-being check. The defendant then hung up the phone.
After the phone conversation with her mother, the victim repeatedly told the defendant that she wanted to go home, to which he replied that she was not going anywhere. The defendant then grabbed the victim by her neck, choking her and leaving scratch marks on her neck. The victim attempted to go downstairs with her children, but the defendant grabbed her by the neck again. The defendant then let the victim go downstairs with her two older children, but he brought the baby back upstairs, and the victim yelled at the defendant to give her back her baby. At this point, an unidentified older man who lived downstairs told the defendant to give the victim back her baby and to let her go because he did not want any trouble with the police. The defendant obliged and let the victim and her children leave the apartment. He made the victim promise to come back, however, and threatened that if she did not return, he would look for her and kill her. The victim then drove to her mother's house, where she was met by Officers Robert Quaglini and Robert Iovanna of the Hartford Police Department, who had responded to her mother's 911 call. The victim informed the officers of what had happened and provided a description of the defendant and the location where the incident had occurred.
Quaglini and Iovanna then left the mother's home in pursuit of the defendant. After obtaining the defendant's name, date of birth, and " DOC picture" from their cruiser computer, they began walking on Ward Street and saw the defendant standing on the front steps of an apartment building. When Quaglini made eye contact with him, the defendant immediately turned around and ran inside the apartment. Quaglini ordered the defendant to stop, but he did not comply. Quaglini then chased him into the apartment, where he ran down the back stairs and out the back door of the apartment. The defendant ran west on Ward Street, turned north on Lawrence Street, passed a couple of houses, ran east, and started hopping fences in the backyards while running northbound on Lawrence Street.
Quaglini saw the defendant hop a fence at 913 Broad Street and later located him hiding under a minivan parked near that address. Quaglini first ordered the defendant to come out from under the minivan, but he refused. When Quaglini attempted to grab the defendant's feet to pull him out, the defendant began kicking at Quaglini's hands. Quaglini then struck the defendant's ankle with his baton, but the defendant still would not come out. Quaglini struck the defendant's ankle three more times before he was able to grab the defendant's feet, pull him out, and place him in handcuffs. The defendant was given medical treatment at the scene for swelling to his ankle, and later was treated at Hartford Hospital for a broken ankle. After the defendant was placed under arrest, he stated that he " didn't do it, " that he just wanted to be with the victim, and that they had had an argument about their relationship. The police then transported the victim to the scene for a show up identification of the defendant and to the Hartford Police Department to have her statement taken by the major crimes detectives.
(Footnotes omitted.) State v. Ampero, supra, 144 Conn.App. 708-12.
The petitioner initiated this habeas action on September 5, 2014. The petitioner's second amended petition is in three counts, claiming: (1) ineffective assistance of counsel; (2) actual innocence; and (3) violation of his due process rights.
As to count one, his ineffective assistance of counsel claim, the petitioner asserts that his trial counsel was ineffective in failing to:
1. Obtain the 911 tape of the victim's mother's statements, which the petitioner claims were inconsistent with her trial testimony;
2. Object to prior misconduct and incarceration evidence;
3. Request limiting instructions regarding the prior misconduct and incarceration evidence;
4. Object to the victim's mother's comment as to the victim's " credibility";
5. Present exculpatory witnesses, Mario Negron, Maria Sepuolveda, Norma Garcia, and Gabriel Ampero; 
6. Prepare for sentencing and present mitigation evidence; and
7. Ensure that the petitioner received three days pretrial jail credit.
In count two, the petitioner claims that he is actually innocent of the charges based on the evidence of witnesses presented at the habeas trial. As to this count, the respondent claims that the petitioner has failed to state a claim upon which relief can be granted.
In count three, the petitioner asserts that his right to due process was violated because he was convicted based on the perjured testimony of the victim and her mother. As to this count, the respondent asserts the special defense of procedural default, claiming that this claim should have been raised at trial or on direct appeal. The petitioner denies that he is procedurally defaulted from raising this claim.
The habeas trial was held on December 11 and 16, 2014. The petitioner presented the following witnesses: himself, Mario Negron, Maria Sepuolveda, Norma Garcia, Ramon Rosado, Anthony Sanchez, Gabriel Ampero, and Celestino Gonzalez. The respondent presented the testimony of trial counsel, R. Bruce Lorenzen. Both parties submitted exhibits and filed post-trial briefs.
The court finds the following additional facts:
Prior to and during his criminal trial, the petitioner was represented by Public Defender R. Bruce Lorenzen, an experienced criminal defense attorney. Attorney Lorenzen was assigned to the petitioner's case after it was transferred to the Part A criminal docket. He then met with the petitioner and obtained the state's file, which contained police reports and photographs, among other things. Attorney Lorenzen also conducted his own investigation, using an investigator. When Attorney Lorenzen and his investigator spoke with the petitioner, the petitioner said that he had been in a romantic relationship with the victim, and Attorney Lorenzen asked the petitioner for the names of persons who could testify in support of this claim. The petitioner provided counsel with two names, Nancy Gonzalez and Melania Alverez, who the petitioner claimed were on a lease at the apartment where he was living. However, Attorney Lorenzen could not locate these witnesses.
According to Attorney Lorenzen, the defense theory was that the victim's mother disliked the petitioner, and as a result, the victim created the kidnapping story rather than admit that she was voluntarily with the petitioner. The victim had children and needed to rely on her family for support, and therefore believed that she could not admit that she went with the petitioner voluntarily.
Additional facts will be discussed as necessary below.
I. Claims of Ineffective Assistance of Trial Counsel
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. ...